United States District Court, D. Maryland
David Copperthite United States Magistrate Judge
before this Court is Defendants' Colin Ottey. Kristi
Cortez, Greg Flury, Dawn Hawk, James Hunt. Ava Joubert.
Quinta Lum. Jennifer Bradfield. Kimberly Hienbaugh. Michelle
Schultz. Krista Swan. Lisa Shell, (hereinafter collectively
referred to as the "Individual Defendants") and
Wexford Health Sources. Inc. (hereinafter referred to as
"Wexford") Motion to Dismiss for Failure to State a
Claim and/or Motion for Summary Judgment
("Defendants' Motion") (ECF No. 102). Also
pending before this Court is Plaintiff Andrew J. Dicks's
Motion for Other Relief pursuant to Federal Rule of Civil
Procedure 56(d) (ECF No. 104). After considering the Motions,
and responses thereto (ECF Nos. 102, 103, 104, 105), the
Court Finds that no hearing is necessary. See Loc.
R. 105.6 (D. Md. 2014). In addition, the Court will DENY
Plaintiffs Motion for Other Relief with respect to delaying
consideration of the Motion for Summary Judgment, pursuant to
Rule 56(d) (ECF No. 104) and. for the reasons that follow.
Defendants' Motion to Dismiss for Failure to State a
Claim and/or Motion for Summary Judgment (ECF No. 102) is
GRANTED in part, and DENIED in part.
1, 2014 Andrew Joseph Dicks ("Plaintiff") initiated
an action in this court claiming violations of Plaintiffs
Eight Amendment rights and various state laws for tortious
conduct and deliberate indifference related to Plaintiffs
various medical needs. On July 1. 2016. Plaintiff filed a
Motion for Leave to File a Second Amended Complaint and on
July 25, 2016. the Court granted Plaintiffs request.
Thereafter, on July 25, 2016, Plaintiff filed a Second
Amended Complaint ("the Complaint*') alleging: (1)
Deliberate Indifference against Individual Defendants; (2)
Deliberate Indifference against Wexford; (3) Medical
Negligence against Individual Defendants; (4) Medical
Negligence against Wexford; and (5) Intentional Infliction of
Emotional Distress against both Individual Defendants and
Wexford. With regard to those claims, Plaintiff
alleged that on numerous occasions between June 2012 and
March 2014, Individual Defendants (I) refused to properly and
completely examine Plaintiffs skin condition (skin lesions
that had spread to various areas of his body); (2)
misdiagnosed Plaintiff; (3) provided inadequate and/or
ineffective treatment for Plaintiffs skin condition; and (4)
refused to refer Plaintiff to an outside medical provider
after discovering that they were ill-equipped to treat
Plaintiffs skin condition.
August 19, 2016, Defendant filed a Motion to Dismiss
[Plaintiffs Complaint] for Failure to State a Claim and/or
Motion for Summary Judgment ("Defendants'
Motion") (ECF No. 102). On September 19. 2016, Plaintiff
filed both a Response Motion in Opposition to Defendants'
Motion to Dismiss and/or Motion for Summary Judgment (ECF No.
103) and a Motion for Other Relief pursuant to Rule 56(d)
(ECF No. 104). On October 6, 2016. Defendants filed a Reply
to Plaintiffs Opposition (ECF No. 105). This matter is now
fully briefed and the Court has reviewed Defendants'
Motions as well as Plaintiffs Responses.
contends: (1) that the record does not support Plaintiffs
claims of deliberate indifference (Counts I and II); (2) that
Plaintiff has failed to state a claim against Wexford for
deliberate indifference (Count II); and (3) that Plaintiff
has failed to state a claim of intentional infliction of
emotional distress (Count V). Defendants further argue that
the Court should refuse to exercise supplemental jurisdiction
over Plaintiffs state law claims (Counts III, IV. and V).
12(b)(6) Motion to Dismiss
have moved to dismiss or. in the alternative, for summary
judgment. "The purpose of a Rule 12(b)(6) motion [to
dismiss] is to test the sufficiency of a complaint."
McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir.
2010) (internal citation omitted). When ruling on a motion to
dismiss under Fed.R.Civ.P. 12(b)(6). a court is required to
"accept the well-pled allegations of the complaint as
true" and "construe the facts and reasonable
inferences derived therefrom in the light most favorable to
the plaintiff." Ibarra v. United States, 120
F.3d 474. 474 (4th Cir. 1997); Nemet Chevrolet. Ltd v.
Consumeraffairs.com, Inc.. 591 F.3d 250, 255 (4th Cir.
2009) ("in evaluating a 12(b)(6) motion to dismiss, a
court accepts all well-pled facts as true and construes these
facts in the light most favorable to the plaintiff in
weighing the legal sufficiency of the complaint.") To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
set forth "a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim is facially plausible "when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
678 (citing Tuomblv. 550 U.S. at 556).
a court cannot consider matters outside the pleadings or
resolve fact disputes when ruling on a Rule 12(b)(6) motion.
Bosiger v. U.S. Airways, 510 F.3d 442. 450 (4th Cir.
2007). However, if the court does consider matters outside
the pleadings, "the motion must be treated as one for
summary judgment under Rule 56." and "[a]ll parties
must be given a reasonable opportunity to present all the
material that is pertinent to the motion." Fed.R.Civ.P.
12(d); see also Finley Lines Joint Protective Bd. Unit
200 v. Norfolk S. Corp., 109 F.3d 993, 997 (4th Cir.
1997). ("[A] Rule 12(b)(6) motion to dismiss supported
by extraneous materials cannot be regarded as one for summary
judgment until the district court acts to convert the motion
by indicating that it will not exclude from its consideration
of the motion the supporting extraneous materials.").
are two requirements for a proper Rule 12(d)
conversion." Greater Baltimore Center for Pregnancy
Concerns, Inc. v. Mayor and City Council of Baltimore,
721 F.3d 264. 281 (4th Cir. 2013). First, all parties must
"be given some indication by the court that it is
treating the 12(b)(6) motion as a motion for summary
judgment, " which can be satisfied when a party is
"aware that material outside the pleadings is before the
court." Gay v. Wall, 761 F.2d 175. 177 (4th
Cir. 1985); see also Laughlin v. Metro. Washington
Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998)
(commenting that a court has no obligation "to notify
parties of the obvious"). "[T]he second requirement
for proper conversion of a Rule 12(b)(6) motion is that the
parties first 'be afforded a reasonable opportunity for
discovery.' " Greater Baltimore, 721 F.3d
at 281 (quoting Gay, 761 F.2datl77).
requirements are satisfied here. First, Plaintiff was made
aware that material outside the pleadings was before the
court because Defendants' motion included numerous
exhibits, including Plaintiffs medical records. Second.
Plaintiff was afforded a reasonable opportunity for
discovery, a fact made more evident by the Court's second
amended scheduling order, proposed and stipulated to by the
parties, extending discovery beyond the original June 15,
2016 deadline. ECF No. 82 (docketed June 13, 2016).
Accordingly. Defendants" Motion shall be treated as a
motion for summary judgment, and the court will consider the
materials outside of the pleadings.
Rule 56 Motion for Summary Judgment
to Rule 56. a movant is entitled to summary judgment where
the pleadings. depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any.
show that there is no genuine issue as to any material fact.
Fed.R.Civ.P. 56(a); See Celotex Corp. v. Catrett,477 U.S. 317, 322-23 (1986). The Supreme Court has clarified
that not every factual dispute will defeat a motion for
summary judgment but rather, there must be a genuine issue of
material fact. Anderson v. Liberty Lobby. Inc., 477
U.S. 242, 247-248 (1986) ("the mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact."'). An issue of fact is
material if, under the substantive law of the case,
resolution of the factual dispute could affect the outcome.
Id. at 248. There is a genuine issue as to material
fact "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Id:
see Dulaney v. Packaging Corp. of Am.,673 F.3d 323, 330